Overreaching judges, with Gordon Lloyd (Scripps Howard News Service) March 29, 2004

March Madness came early this year. The normal madness on the college basketball court is in full swing, but this year’s real madness started last month in Massachusetts Supreme Court when it changed the shape of politics, culture and the family from Bay State to the Bay Area.

The constitutional madness started on Feb. 3 when the Massachusetts Supreme Court decided in a 4-3 vote that banning same-sex marriage violates the equal protection clauses of that state’s constitution. Not to be outdone, San Francisco’s rookie mayor announced a week later he had taken a vote in his own mind and had decided 1-0 that California’s law banning homosexual marriage was similarly unconstitutional.

Fans of March basketball madness hate it when referees take over a game, which is precisely what has occurred in the same-sex “marriage” madness. The referee-courts and mayor-coaches have taken over the game, removing it from the voters who should be the real players in a democracy. Beneath the important social questions about marriage lies this fundamental issue of a constitutional democracy: Who decides a question like same-sex marriage?

In our democracy, legislatures are elected to enact new laws, the executive branch to carry them out, and the courts are to referee conflicts and disputes, while also ruling on constitutionality. The notion that judges — aptly described by constitutional law professor Lino Graglia as “lawyers in robes” — should take the initiative and undo hundreds of years of American law and thousands of years of religious codes and cultural practice wrongly puts the referees into the game. Courts are to respond to changes in the law, not initiate them.

In recent years, however, courts have found a way to become major policy players, not mere referees. Courts have decided the equal protection doctrine of the Constitution, which was intended to provide a limited, procedural protection, gives them the right to decide what is reasonable. As a result, a three-judge panel of the Ninth U.S. Circuit Court of Appeals decided unanimously that California’s recall election, duly initiated by voters and certified by the state, could not go forward because the judges’ equal protection concerns trumped the electorate’s right to vote. Fortunately, their own colleagues reversed them.

No soon had Congress enacted limits on telephone solicitations than a couple of federal judges decided their notions of equal protection had been violated.

This “equal protection democracy” — that judges now regularly use to trump both the direct democracy of voting and the representative democracy of legislating — is producing absolute madness. Liberals who typically support the people’s right to choose prefer what the judges are deciding about same-sex “marriage.” Conservatives who normally resist altering the Constitution are left to support an amendment to block same-sex marriage. And the candidates for president are caught in an election year dealing with an agenda set not by voters or the campaigns but by seven lawyers in robes and one rookie mayor.

Finally a time-out was called by the California Supreme Court, unanimously holding same-sex “marriages” must stop at least until the referees sort out some fo the mess.

Unfortunately it is only a word of temporary sanity, since the court proposes to rule on the limited questions of whether a mayor can order same-sex “marriages” in the face of a California law prohibiting them. The underlying problems of due process and equal protection, along with the important social issues concerning marriage itself, remain.

In his book, “The Tipping Point,” Malcolm Gladwell describes how change occurs over time. Ideas move through the population slowly, being tested, examined, adopted and rejected. Finally, a tipping point is reached when a change is made. We must not allow judges to race off on their own and alter the nature of presidential campaigns, trigger constitutional amendments, and change hundreds of years of marriage with their own opinions. Their work should not be a “toppling point,” initiating and overthrowing the will of the people and requiring elected representatives to respond.

Those who control the referees must, in the end, take charge of the game and halt this constitutional madness. Higher courts must tell lower courts that equal protection democracy may not regularly trump the will of the people, expressed in elections and through legislatures.

Judges who reach for this kind of power should be impeached or voted out of office.